# Merwine v. Berdanier

> District Court, M.D. Pennsylvania · March 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10409935

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409935

## How later opinions describe it (automated extraction)

- holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”
- rejecting a “special circumstance” exception

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

FERNANDO FONSECA, JR., :
BRADLEY L. MERWINE,
WILLIE JAMES BROWN, :

Plaintiffs : CIVIL ACTION NO. 3:19-1427

v. : (JUDGE MANNION)

GENE BERDANIER, et al., :

Defendants :

MEMORANDUM

I. Background

Seventeen inmates, all housed in Schuylkill County Prison,

Pottsville, Pennsylvania, filed the above captioned action pursuant to 42

U.S.C. §1983. (Doc.1). The named Defendants are fourteen correctional

officers employed at Schuylkill County Prison and William Baldwin,

Schuylkill County Prison Board President. Id. The Plaintiffs make the

following ten claims regarding the conditions of the Schuylkill County

Prison:

1. There is mold growing in the cinder block near the showers.

2. The ceiling tiles have fell and are falling in the block and
above tables where individuals eat with particles that fall from
ceiling.
1
3. There are electric extension cords bare in the shower area
attached to the railing which is rust.

4. The kitchen is not serving the proper portion of food and
inmates are being mal nutriented (sic) and deprived of the
proper amount of calories required per meal per day.

5. There is no air circulation. The windows and sills are
cluttered with debris and there is no air circulation; even the
guards say its inhumane.

6. Inmates are sold instant coffee but not supplied hot water
to drink it. The same is sold Ramen soup but not given hot
water to make them.

7. There’s toilet paper and debris hanging from the ceiling
and it sometimes falls into individual food or onto individuals.
It’s extremely unsanitary.

8. Inmates that feel it’s to hot to go out to yard are forced to
lock in cells that are atrocious with heat and no air circulation.

9. No cold water is supplied on the block or in the yard for
inmates to drink to re-hydrate.

10. The heat and living conditions of this facility are/is
inhumane.

(Doc. 1). Plaintiffs claim that they have “been sick, vomiting, heat stroke

and exhausting, difficulty breathing at times and constant headaches”.

Id. For relief, Plaintiffs seek to have:

“the ceiling repaired, the mold removed, the cinder blocks
broke out and replaced, the debris on the ceilings wiped
2
off/brushed off, the amount of food being served to be
monitored to make sure the proper portion is being served,

some type of coolant or ventilation system put in and windows

cleaned out so air can come through the screens or windows,
welded close and air conditioning system installed, hot water
keep on the block or a 180◦ line put in or microwave and

24,000,000 for medical expenses and bills that could possibly

arise in the future from breathing in the germs of the mold and
to divide amongst inmates that were affected by and
mistreated through these conditions we’d like some type of

step welded onto the beds for people to get up and down the

bunks, plates so inmates can’t roll off top bunks and get hurt”.
Id.
By Order dated August 19, 2019, this Court issued an

Administrative Order, requiring each Plaintiff to file a completed and

signed Application to Proceed In Forma Pauperis, or pay the filing fee,

within thirty days. (Doc. 5). Plaintiffs Fonseca, Merwine, and Brown were

the only Plaintiffs to submit individual applications, requesting leave to

proceed in forma pauperis under 28 U.S.C. §1915. Consequently, by

Memorandum and Order dated December 11, 2019, the applications to

proceed in forma pauperis, filed by Plaintiff’s Fonseca, Brown and

Merwine, were granted, all remaining Plaintiffs were dismissed from the
3
action and Plaintiffs’ claims for injunctive relief were dismissed as moot.
(See Docs. 40, 41).

On January 23, 2020, Defendants filed a motion to dismiss
Plaintiffs’ complaint, in which Defendants address the merits, as well as
argue that Plaintiff’s action should be dismissed for Plaintiff’s failure to

properly exhaust his administrative remedies in accordance with the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a). (Doc. 48).
On July 2, 2020, in accordance with Paladino v. Newsome, 885
F.3d 203 (3d Cir. 2018), (holding that the District Court shall provide the

parties notice that it will consider exhaustion in its role as fact finder under
Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an
Order, allowing the parties an opportunity to supplement the record with

supporting evidence relevant to the exhaustion of administrative
remedies. (Doc. 50).
On July 15, 2020, Defendants filed a statement of uncontested
facts and a memorandum of law in support. (Docs. 53, 54). On July 28,

2020, Plaintiff, Bradley Merwine, filed a brief in opposition to Defendants’
supplemental brief and statement of facts. (Doc. 57).

4
On July 16, 2020, this Court’s July 2, 2020 Order, was returned as
undeliverable to Plaintiffs Fonseca and Brown, noting that the inmates

were not located at SCI-Schuylkill and the mail was unable to be
forwarded.1 (Docs. 55, 56).
Defendants’ motion is ripe for disposition. For the reasons set forth

below, the Court will grant Defendants’ motion to dismiss.

II. Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for

“failure to state a claim upon which relief can be granted.” Under Rule
12(b)(6), we must “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009)(quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008)). While a complaint need only contain “a short and plain

1 In addition to Plaintiffs’ failure to properly exhaust administrative
remedies, Plaintiffs Fonseca and Brown should be dismissed from the
above captioned action for failure to comply with their obligation to inform
the Court of an address change. (See Doc. 4).
5
statement of the claim,” Fed.R.Civ.P. 8(a)(2), and detailed factual
allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007), a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Id. at 570. “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556
U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is
not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim
must include at least a discernible factual basis to survive a Rule
12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey,

588 F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a two-part
analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual
elements from the legal elements and disregard the legal conclusions. Id.

at 210-11. Second, we “determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a “plausible claim for
relief”.” Id. at 211 (quoted case omitted).

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III. Statement of Undisputed Facts Regarding Exhaustion
The Schuylkill County Prison has an inmate grievance procedure.

(See Doc. 51 at 5). The process first requires the inmate to write out the
complete grievance as specific as possible soon after the alleged
occurrence and submit the grievance to the Deputy Warden, as

Grievance Coordinator. Id. An inmate dissatisfied with the response to
their grievance has the right to appeal the decision, which must be
submitted in writing to the Warden within ten (10) days after the response
to the grievance is received. Id. The Warden’s decision on the appeal will

be final. Id.
A review of all grievances filed since June 7, 2018, reveal that out
of the three Plaintiffs, Fernando Fonseca, is the only Plaintiff ever to file

a grievance. (Doc. 51 at 3). On September 17, 2018, Plaintiff, Fonseca,
filed Grievance 1166, regarding the top bunk in his cell. (Doc. 51 at 13).
Plaintiff claimed that the bunk was caving in and collapsed on top of him,
in spite of him complaining to maintenance about the bunk. Id. The

grievance was denied on October 3, 2018 by the Deputy Warden and no
appeal was taken. Id. No other grievance was filed by any of the Plaintiffs
regarding the conditions complained of in their complaint.

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IV. Discussion
Under the PLRA, a prisoner must pursue all available avenues for

relief through the prison’s grievance system before bringing a federal civil
rights action. See 42 U.S.C. §1997e(a); Booth v. Churner, 532 U.S. 731,
741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of

relief sought and offered through administrative avenues.”). Section
1997(e) provides, in relevant part “[n]o action shall be brought with
respect to prison conditions under section 1983 of the Revised Statutes
of the United States, or any other Federal law, by a prisoner confined in

any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted. 42 U.S.C. §1997(e). The
exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637,

639 (3d Cir. 2007); Booth, 532 U.S. at 742 (holding that the exhaustion
requirement of the PLRA applies to grievance procedures “regardless of
the relief offered through administrative procedures”). Moreover, while
Plaintiff was released from prison after filing the above-captioned case

(Doc. No. 10), he is still bound by the exhaustion requirement because
he has raised claims concerning events that occurred prior to his release.
See Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).

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The United States Court of Appeals for the Third Circuit has further
provided that there is no futility exception to §1997e’s exhaustion

requirement. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts
have typically required across-the-board administrative exhaustion by
inmates who seek to pursue claims in federal court. Id. Additionally,

courts have imposed a procedural default component on this exhaustion
requirement, holding that inmates must fully satisfy the administrative
requirements of the inmate grievance process before proceeding into
federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have

concluded that inmates who fail to fully, or timely, complete the prison
grievance process are barred from subsequently litigating claims in
federal court. See e.g., Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008);

Booth v. Churner, 206 F.3d 289 (3d Cir. 2000).
This broad rule favoring full exhaustion allows for a narrowly
defined exception. If the actions of prison officials directly caused the
inmate’s procedural default on a grievance, the inmate will not be held to

strict compliance with this exhaustion requirement. See Camp v.
Brennan, 219 F.3d 279 (3d Cir. 2000). However, case law recognizes a
clear “reluctance to invoke equitable reasons to excuse [an inmate’s]

9
failure to exhaust as the statute requires.” Davis v. Warman, 49 F. App’x
365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will only be

excused “under certain limited circumstances,” Harris v. Armstrong, 149
F. App’x 58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure
to exhaust only by showing “he was misled or that there was some

extraordinary reason he was prevented from complying with the statutory
mandate.” Warman, 49 F. App’x at 368.
In the absence of competent proof that an inmate was misled by
corrections officials, or some other extraordinary circumstances, inmate

requests to excuse a failure to exhaust are frequently rebuffed by the
courts. Thus, an inmate cannot excuse a failure to timely comply with
these grievance procedures by simply claiming that his efforts constituted

“substantial compliance” with this statutory exhaustion requirement.
Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005). Nor can an
inmate avoid this exhaustion requirement by merely alleging that the
administrative policies were not clearly explained to him. Warman, 49 F.

App’x at 368. Thus, an inmate’s confusion regarding these grievance
procedures does not, standing alone, excuse a failure to exhaust. Casey
v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also Marsh v. Soares, 223

10
F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ‘ignorance
of the law, even for an incarcerated pro se petitioner, generally does not

excuse prompt filing.’ ”) (citations omitted).
The Supreme Court considered what renders administrative
remedies unavailable to an inmate such that a failure to exhaust can be

excused. See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted
“three kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use to obtain relief.” Id.
at 1859. First, an administrative procedure is not available “when (despite

what regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates.” Id. Second, a procedure is not available

when it is “so opaque that it becomes, practically speaking, incapable of
use.” Id. Finally, a procedure is unavailable when “prison administrators
thwart inmates from taking advantage of a grievance process through
machination, misinterpretation, or intimidation. Id. at 1860.

The Third Circuit recently joined other circuits to hold “that
administrative remedies are not ‘available’ under the PLRA where a
prison official inhibits an inmate from resorting to them through serious

11
threats of retaliation and bodily harm.” Rinaldi v. United States, 904 F.3d
257, 267 (3d Cir. 2018). To defeat a failure-to-exhaust defense based on

such threats, “an inmate must show (1) that the threat was sufficiently
serious that it would deter a reasonable inmate of ordinary firmness and
fortitude from lodging a grievance and (2) that the threat actually did deter

this particular inmate.” Id. at 269.
Finally, failure to exhaust is an affirmative defense that must be
pled by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). Once
defendants present evidence of a prisoner’s failure to exhaust, the

burden of proof shifts to the inmate to show that exhaustion occurred or
that administrative remedies were unavailable. Rinaldi v. United States,
904 F.3d 257, 268 (3d Cir. 2018). “Both the [United States] Supreme

Court and [the Third Circuit Court of Appeals] have rejected judge-made
exceptions to the PLRA.” Downey, v. Pa. Dep’t of Corr., 968 F.3d 299,
305 (3d Cir. 2020). District courts may not “excuse [a prisoner’s] failure
to exhaust.” Ross, 136 S. Ct. at 1856 (rejecting a “special circumstance”

exception). Likewise, district courts do not have the authority “to excuse
compliance with the exhaustion requirement, whether on the ground of

12
futility, inadequacy or any other basis.” Nyhius v. Reno, 204 F.3d 65, 71
(3d Cir. 2000).

Here, Defendants argue that Plaintiffs’ grievance record
demonstrates that none of the three Plaintiffs filed any grievances
regarding the conditions of confinement complained of in their complaint.

Thus, they failed to properly exhaust their administrative remedies prior
to filing the instant action.
In opposition, Plaintiff, Merwine, the only Plaintiff to oppose
Defendants’ motion, concedes that he did not exhaust his administrative

remedies prior to filing the instant action. (Doc. 57). He claims that the
Schuylkill County Prison “does not have a fair and unbiased proper
grievance procedure” because, “requesting a grievance form usually

takes up to 3 to 5 days to receive “ and “furthermore it is a single page
grievance paper not even a form.” Id. Additionally, Plaintiff claims that “it
would be a conflict of interest grieving the same individuals the inmate is
grieving.” Id.

Unfortunately, Merwine’s belief that the pursuit of the administrative
remedy process was futile or needless, does not excuse his failure to
exhaust his available administrative remedies. Rather, as the forgoing

13
discussion demonstrates, Merwine is excused from exhausting his
administrative remedies prior to bringing his federal action only if he can

demonstrate that the administrative review process was “unavailable.”
Ross, 136 S. Ct. at 1859 (2016).
Based on the record before this Court, Merwine has not

demonstrated that the Schuylkill County Prison’s administrative remedy
process was unavailable to him. Nor does he suggest that any of the
named Defendants interfered with his ability to complete the grievance
process. Thus, the record is clear that Plaintiffs did not exhaust his

administrative remedies prior to filing the instant action, and Defendants’
motion to dismiss will be granted.

VI. Conclusion
For the reasons set forth above, the Court will grant Defendants’
motion to dismiss for Plaintiffs’ failure to exhaust administrative remedies.
A separate Order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION

United States District Judge
DATE: March 10, 2021
19-1427-02
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409935. Public record. Not legal advice.